MARIYUMMA Vs. ANDUNHI

JUDGEMENT

(1.) The two plaintiffs in O. S. No. 7 of 1973 on the file of the Subordinate Judge, Kasaragod are the appellants in this appeal. The suit was filed by them for partition of a 1/3 share in the plaint schedule property and for recovery of possession of the same with future mesne profits and costs. The lower court dismissed the suit upholding the contentions of the defendants that the suit property has been dedicated by way of wakf for religious and charitable purposes and that hence it is not partible. The correctness of the said finding is called in question by the plaintiffs in this appeal.

(2.) The 1st plaintiff is the daughter of Aboobacker, the 2nd plaintiff. Aboobacker (2nd plaintiff), the 1st defendant and the deceased husband of the 2nd defendant were brothers. The case of the plaintiffs is that under the registered partition deed evidenced by Ext. A2 dated 29th August, 1940 entered into between the aforesaid three brothers and the other members of the family the suit property along with two other items had been Jointly allotted to the three brothers. The two other items of properties referred to above were later divided between the three brothers, but the suit property continues to be held by them in common. The 2nd plaintiff has executed a registered gift deed in respect of his 1/3 share in favour of the 1st plaintiff and the suit has accordingly been instituted seeking allotment of a 1/3 share in the suit property in favour of the 1st plaintiff on the basis that the plaint property belongs in "common to the 1st plaintiff, the 1st defendant and the 2nd defendant (in whose favour her husband had made a gift of his 1/3 share). The common defence put forward by defendants No. 1 and 2 was that under the partition deed evidenced by Ext. A2 there was a dedication of the plaint schedule property by way of wakf for the performance of the religious purposes mentioned in that document and that hence the plaint contention that the property belongs in common to the plaintiff and defendants Nos. 1 and 2 is incorrect and the claim for partition of a 1/3 share put forward by the plaintiffs is untenable.

(3.) The plaint schedule property is included in the C schedule in the partition deed Ext. A2. The original document is in Kannada language. An English translation of the relevant recitals contained therein is amongst the records sent up to this court by the court below. It is stated in the document that the properties shown in schedules A, B and C are allotted to executants Nos. 4, 5 and 6 (the 2nd plaintiff, the 1st defendant and the husband of the 2nd defendant) jointly. It is further recited that from the income of the C schedule properties, "in accordance with our religious practice, for the religious good of our family and also for the salvation of the soul of our deceased ancestors Moulood should be read in the family house on the 12th of Rabiul Awal of each year and one chapter of the Quran should be recited in the family house every day. There is also a stipulation that the property should be free from alienation in favour of strangers and it should not be burdened with debts, attachments and injunctions and that it is subject to the above provisions that the property has been allotted jointly to Nos. 4, 5 and 6.